Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

The Committee notes the communication from the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), of which the following are members: the General Confederation of Workers of Guatemala (CGTG); the Single Trade Union Confederation of Guatemala (CUSG); the National Trade Union and People’s Coordinating Body (CNSP); the Committee of Rural Workers of the Altiplano (CCDA); the National Indigenous, Rural Workers and People’s Council (CNAICP); the National Front for the Defence of Public Services and Natural Resources (FNL); and the Trade Union Confederation of Guatemala (UNSITRAGUA). The communication was dated 28 August 2009, and was forwarded to the Government on 19 October 2009. The Committee will examine the communication in 2010, together with any observations of the Government in this regard. The Committee also recalls that in its previous observation it did not examine the Government’s report of 2008, as it was received late, and will therefore examine it in the present observation, together with the report of 2009.

Sacatepequez and cement company. State of emergency. In its previous observation, the Committee noted the communication from the MSICG, received on 31 August 2008. The communication referred to the award of a permit in the Sacatepequez case and the implementation of a mining project by force, despite the fact that the proposal for exploitation by mining was totally rejected by the community, with 8,936 votes against and four in favour. It added that a state of emergency was declared with a view to imposing the establishment of the cement company without consultation. The Committee notes the information provided by the Government concerning Government Decree No. 3-2008 introducing the state of prevention. However, it notes that no information has been provided on the special measures adopted, as requested by the Committee, to safeguard the persons, institutions, property, labour, cultures and environment of the peoples concerned, in accordance with Article 4 of the Convention.

With regard to the application of Articles 6, 7 and 15 of the Convention in the present case, the Committee notes the indication by the Ministry of Energy and Mining that it is impossible for it to hold consultations in accordance with the Convention due to the absence of specific regulations on this subject. It adds that, in view of the absence of such provisions, the Ministry has to comply with the Mining Act that is currently in force, which establishes a series of requirements that have to be met by the party concerned to obtain a mining permit and, once they have been fulfilled, requires the administration to grant the permit without giving it any option to do otherwise. It further notes that the Ministry urged those interested in obtaining permits to approach the indigenous communities and inform them fully concerning their projects. The Committee notes that, according to the Government’s report, a forum for dialogue was established for the Government and the representatives of the communities concerned with a view to assessing the situation.

The Committee wishes to draw the Government’s attention to the fact that the right of indigenous peoples to be consulted on each occasion that measures are envisaged which are likely to affect them directly is derived directly from the Convention, irrespective of whether or not consideration has been given to the adoption of specific national legislation. It also wishes to note that the obligation to ensure that indigenous peoples are consulted in accordance with the Convention rests with the Government, and not with private individuals or enterprises. Furthermore, the provisions of the Convention relating to consultations have to be read in conjunction with Article 7, which sets out the right of indigenous peoples to decide their own priorities for the process of development and to participate in the formulation, implementation and evaluation of plans and programmes for development which may affect them directly. In this respect, it recalls that in its 2008 general observation on the Convention, the Committee emphasized that “[d]isregard for such consultation and participation has serious repercussions for the implementation and success of specific development programmes and projects, as they are unlikely to reflect the aspirations and needs of indigenous and tribal peoples”. It also emphasizes that Article 7(3) of Convention provides that governments shall ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities, and that Article 15(2) establishes that consultations have to be held with a view to ascertaining whether and to what degree the interests of indigenous peoples would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. Furthermore, in accordance with Article 7(4), governments shall take measures, in cooperation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.

The Committee therefore urges the Government to:

(i)    bring existing legislation, such as the Mining Act, into conformity with Articles 6, 7 and 15 of the Convention;

(ii)   adopt without delay all the necessary measures to hold constructive dialogue in good faith between all the parties concerned in accordance with the requirements set out in Article 6 of the Convention to seek appropriate solutions to the situation in a climate of mutual trust and respect, taking into account the Government’s obligation to safeguard the social, cultural and economic integrity of indigenous peoples in accordance with the spirit of the Convention; and

(iii) immediately suspend the alleged activities while such dialogue is being held and assess, in cooperation with the peoples concerned, the social, spiritual, cultural and environmental impact of the envisaged activities and the extent to which the interests of indigenous peoples would be prejudiced, in accordance with Articles 7 and 15 of the Convention.

Please provide detailed information on the measures adopted regarding these matters.

Articles 14 and 20. Land and wages. In its previous observation, the Committee noted that the communication referred to above indicated that the rights to lands recognized in the Convention were being violated and mentioned the following cases: Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim. It added that indigenous peoples are not recognized as the traditional occupants and that, having been employed on their own lands, their wages were not paid and they were violently removed and their ranches burned. With reference to the June 2007 report of the Governing Body (GB.299/6/1), the Committee recalled that, although the regularization of lands takes time, indigenous peoples should not be adversely affected by the duration of this process and it requested the Government to adopt transitional measures in order to protect the land rights referred to in Article 14 of the Convention and to provide detailed information on the wages due.

The Committee notes the Government’s indication that a National Policy for Integral Rural Development has been formulated which, according to the report, is intended, among other objectives, to “reform and democratize the system for the use, holding and ownership of lands”, “promote laws for the recognition of the rights of possession, ownership and allocation of lands to persons belonging to rural indigenous peoples” and “promote decent work in rural areas in general”. However, the Committee notes that information is not provided on the cases referred to previously, in which the allegations concern violations of the rights of indigenous peoples to their lands, nor is information provided on the transitional measures requested by the Committee. The Committee once again requests the Government to provide information on the transitional measures adopted to protect the land rights of indigenous peoples until progress is made in the regularization of lands. It requests the Government to provide information on the situation with regard to the Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim and to indicate the measures adopted to ensure that indigenous peoples enjoy the full benefit of the rights set out in the labour legislation, in accordance with Article 20 of the Convention. It invites the Government to provide a copy of the National Policy for Integral Rural Development and to supply information on its implementation in relation to the peoples covered by the Convention. It also refers to the additional comments on this subject contained in the direct request on the Convention.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. The Committee notes that, according to the Government, multi- and intercultural public policies, formulated by presidential committees with representation of the Maya, Garífuna and Xinca peoples, have been implemented. The Government cites as an example its public policy on living in harmony and eliminating racism and racial discrimination. The Government also refers to a Bill on sacred sites and a preliminary draft of legislation to regularize land occupancy. The Government states that progress is being made, but recognizes that there is still some way to go towards effective implementation, which involves a gradual process of establishing the appropriate bodies and mechanisms. In its previous comments, the Committee noted the creation of the State Inter-Institutional Coordination Unit on Indigenous Issues (CIIE), comprising 29 state institutions involved in indigenous issues, and the establishment in 2005 of the Indigenous Advisory Council (CAI). It also noted that, according to comments by the Council of Mayan Organizations of Guatemala (COMG), sent by the General Confederation of Guatemalan Workers (CGTG), there was still only token participation by indigenous peoples.

The Committee recalls that in the report of June 2007 on the representation made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC) alleging the non-observance of certain provisions of the Convention (GB.299/6/1), the Governing Body called on the Government to develop coordinated and systematic action, within the meaning of Articles 2 and 33 of the Convention, with the participation of indigenous peoples, when applying its provisions. The Committee also draws the Government’s attention to its 2008 general observation, in which it notes that Articles 2 and 33 provide that governments are under an obligation to develop, with the participation of indigenous and tribal peoples, coordinated and systematic action to protect the rights and to guarantee the integrity of these peoples. In this regard, the Convention calls for the establishment of agencies and other appropriate mechanisms to administer programmes, in cooperation with indigenous peoples, including all stages from the planning to the evaluation of the measures proposed in the Convention. While the Committee understands that ensuring full application of the Convention is a continuing process, it notes that the information provided does not appear to suggest that the Government’s action is either coordinated or systematic, nor does it show the existence of agencies or mechanisms that would allow indigenous peoples to participate effectively in the development and implementation of such action. The Committee therefore urges the Government, in cooperation with the peoples concerned, to take the measures and establish the mechanisms provided for in Articles 2 and 33, which should allow for coordinated and systematic action to implement the Convention, and to provide detailed information in this respect.

Legislation on consultation and participation. For several years, the Committee has been following the issue of the establishment of institutional mechanisms for consultation and participation as envisaged by the Convention. The Committee notes that in its most recent report, the Government refers to a draft General Act on the rights of indigenous peoples of Guatemala (registered as No. 40-47), which was tabled in the Plenary of the Congress on 11 August 2009 and is awaiting the opinion of the Committee on Legislation and Constitutional Matters and the Committee on Indigenous Peoples. Reference is also made to the Bill on the consultation of indigenous peoples (registered as No. 36-84), which was tabled in the Plenary of the Congress on 25 July 2007 and is still awaiting the opinion of the Committee on Legislation and Constitutional Matters and the Committee on the Economy and External Trade. The Committee also understands that there is another Bill on consultation, under No. 40-51, which received a favourable opinion in the Committee on Indigenous Peoples on 27 September 2009. It further notes that the Ministry of Energy and Mining refers to a third legislative initiative on the subject, under No. 34-13. The Committee also notes that, in accordance with section 26 of the Act respecting urban and rural development councils (Decree No. 11-2002), “until the Act is issued governing the consultation of indigenous peoples, the consultations with the Maya, Xinca and Garífuna peoples on development measures promoted by the executive authorities and which directly affect these peoples may be held through their representatives in the development councils”.

In its previous comments, the Committee noted that, according to the Government, the High-level Committee of the Ministry of Energy and Mines submitted a proposal to amend the Mining Act to the President of the Republic, focusing on “information, participation and consultation of the peoples concerned”. The Committee notes that, according to the Government’s report, this draft has not been transmitted to the Legislative Department, which is consequently unaware of its contents.

The Committee recalls that it has been following these matters since the ratification of the Convention; that the lack of appropriate consultation mechanisms was the subject of a report and recommendations by the Governing Body in response to a representation; that on various occasions it has examined comments by trade unions on serious situations relating to the lack of consultation and the exploitation of natural resources; and that in 2005 it noted the fact that the Office of the Human Rights Ombudsperson had expressed concern about the award by the Government, without prior consultation, of 395 exploration and exploitation permits. The Committee also refers to its 2008 general observation on the application of the Convention, in which it considered it important that governments, with the participation of indigenous and tribal peoples, as a matter of priority, establish appropriate consultation mechanisms with the representative institutions of those peoples. The Committee expresses its concern at the lack of measures to this end. In its previous comments, the Committee noted that the Bill on consultation would be finalized shortly and that a High-level Committee was working on amendments for the inclusion of prior consultation in the mining legislation. However, regrettably no progress appears to have been made concerning these initiatives. Moreover, legislative initiatives appear to have multiplied in a seemingly uncoordinated manner. While the Committee understands that measures to ensure consultation and participation take time, it emphasizes that the steps required in the short, medium and long term need to be clearly established so that the results required under the Convention can be achieved. The Committee therefore urges the Government to take all the necessary measures to ensure the establishment of appropriate machinery for consultation and participation as provided for in the Convention, taking into consideration its general observation of 2008, and to provide detailed information in this regard. The Committee reminds the Government that it can request technical assistance from the Office and asks it to provide detailed information on the measures envisaged with a view to adopting and implementing legislation on consultation and participation. Please provide information on the effect given in practice to section 26 of the Act on urban and rural development councils.

Follow-up of a communication from the Trade Union Confederation of Guatemala (UNSITRAGUA) alleging lack of consultation and participation in relation to the granting of a permit to Montana-Glamis Gold. For several years, the Committee has been following up comments from UNSITRAGUA relating to the permit for mining exploration and exploitation granted to Montana-Glamis in the departments of San Marcos and Izábal, which would extend over an area covering lakes Atitlán and Izábal. The Committee reiterated its invitation to the Government to continue making efforts to hold consultations with the peoples concerned, taking into account the procedure laid down in Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as required by Article 15(2) of the Convention. The Committee repeatedly invited the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis, it would be possible to carry out the studies provided for in Article 7(3) of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. Furthermore, the Committee invited the Government to redouble its efforts to shed light on the incident in which a villager died in the course of a demonstration against the installation of a cylinder for the mine and has requested it to provide detailed information in this respect.

The Committee notes that the Government reiterates that no permit of any kind has been granted for Lake Izábal and that discharges of any kind into any body of water have been prohibited. The Committee notes with regret that the Government has not provided new information in this regard. The Committee recalls that, in its previous comments, it observed that the Government did not deny the alleged lack of consultation, but stated that the enterprise had undertaken an environmental impact study that was approved by the relevant government office. Furthermore, the Committee noted the concerns expressed by the Office of the Human Rights Ombudsperson in its May 2005 report on mining activity. The above Office expressly referred to the project to which the UNSITRAGUA objected and expressed its concern regarding the risks of open-cast mining, and particularly the procedure used in this case, i.e. cyanide leaching. According to the above Office, this type of procedure has had damaging effects on the environment and health in other countries and has been prohibited in other regions of the world, and its potential impact would affect: (1) water sources; (2) air quality, through the release of particles; and (3) the useful and fertile life of the soil, permeated by cyanide solutions. The Committee drew the Government’s attention to the fact that these risks should be subject to prior consultation under Article 15(2) of the Convention, as well as the studies provided for in Article 7(3) of the Convention. Consequently, the Committee, noting that the Government’s report reiterates the information provided previously, expresses its concern regarding the lack of progress in the case under examination and urges the Government to suspend the exploitation in question until the studies provided for in Article 7(3) of the Convention and the prior consultation provided for in Article 15(2) of the Convention can be carried out, and to provide detailed information in this regard. Furthermore, the Committee asks the Government to take the measures necessary to shed light on the incident in which a villager died in the course of a demonstration against the installation of a cylinder for the mine and requests it to provide detailed information in this respect.

Follow-up of the 2007 recommendations of the Governing Body. The Committee notes with regret to note that the Government’s report does not contain information on the matters raised in its 2007 observation as a follow-up to the recommendations adopted by the Governing Body in its report of June 2007. The report concerned a representation alleging a lack of prior consultation of the peoples concerned regarding the award of a permit for mining exploration for nickel and other minerals, number LEXR-902 of 13 December 2004, to the Izábal Exploration and Mining Corporation SA (EXMIBAL) to begin exploratory mining in the territory of the indigenous Maya Q’eqchi people (GB.299/6/1). The Committee urges the Government to provide detailed information in its next report on the action taken to give effect to the 2007 recommendations of the Governing Body (GB.299/6/1).

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]